The 2023-24 SCOTUS Term: It's About the Election, Stupid

In 1992, the political pundit James Carville, at the time working for Bill Clinton's presidential campaign, coined the famous line, "it's the economy, stupid." Obviously, he did not mean to ignore all other issues or that nothing else was important. But the most pressing priority for the campaign was the economy.

In the early 20th century, the fictional character "Mr. Dooley," uttered the immortal line (spelling cleaned up for present purposes): "No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns."

The 2023-2024 term confirms Mr. Dooley's charge that the justices follow the election returns.

There is no debate that the Court's 2022 decision in Dobbs v. Jackson Womens' Health Organization that overturned Roe v. Wade hurt the GOP at the polls. As one pundit noted:

The Supreme Court ruling overturning Roe v. Wade delivered Republicans one of their biggest policy victories in decades. Two years later, on the anniversary of the historic Dobbs decision, party leaders seemed loath to even talk about abortion.

And, according to Whit Ayres, a GOP pollster and consultant, "when you’re talking about abortion, you’re playing on the Democrats’ turf just like when you’re talking about immigration and inflation, you’re playing on Republicans’ turf.” 

The Supreme Court was also "loath" to talk about abortion this term, just like the leaders of the Republican Party. Coincidence?

As Mike explained in his comprehensive year end summary over at Verdict, the Court originally decided to hear two enormously important abortion cases this term. In FDA v. Alliance for Hippocratic Medicine, a put-together group of choice-haters filed a lawsuit claiming the FDA had illegally approved the most used abortion drug. The lawsuit felt like another in a long line of previously successful challenges to agency rule-making that the Roberts Court has employed to dramatically cut back the administrative state. 

The justices dismissed the case for lack of standing. Although the decision was consistent with some prior precedents, the Court could have easily gone the other way because, as I've written many times, given the incoherence of standing doctrine, in any given case, "standing is what standing does." What I mean by that is the justices have discretion to choose from conflicting case law on standing in every case raising the issue, such that they can always peek at the merits, or other considerations, and either hear or dismiss the case. 

In this abortion case, the other consideration was quite obviously the unpopularity of the Dobbs decision and the justices' desire not to throw gasoline on that particular fire in a presidential election year.

If you're wondering, then why did the justices take the case, the answer is they had no choice given that the wackadoodle Fifth Circuit gave the plaintiffs some relief that would have made the drug much harder to obtain, and the justices needed to correct that to avoid blowback at the polls.

The Court also originally decided to hear another important abortion case involving a federal law that requires hospitals that accept federal funds to treat a pregnant woman in cases where the failure to abort would jeopardize her health or life. Idaho decided to choose the fetus over the woman (as have other red states), and the lawsuit was brought to decide whether the federal law preempted state law on the issue. This lawsuit had the potential of being a public relations disaster for the Court, given the numerous stories in the media about women facing serious medical complications, including possible death, only to be airlifted from one state to another because of draconian abortion laws.

The Court punted by a 5-4 vote, using a procedural device known as a "DIG," which means the writ of certiorari was improvidently granted. They did not explain why they decided to dismiss the case in the main opinion, which was only one sentence long, though several of the justices explained their legal reasoning in concurring opinions. 

The reality is that the dismissal was likely based on two different grounds. Justices Roberts, Barrett, and Kavanaugh likely feared the political fallout from the opinion (all three worked for President Bush during the Bush v. Gore litigation), while Justices Kagan and Sotomayor likely were worried about an unfavorable decision on the merits (very likely given the three-justice dissent of Alito, Thomas and Gorsuch).

In a non-election year, would Justices Roberts, Kavanaugh, and Barrett have joined the three doomsayers of destruction (Thomas, Alito, and Gorsuch) in an opinion saying that the federal law did not preempt state law on abortion? I suspect we will find out in about two years. The answer rhymes with mess.

The dismissal of the two abortion decisions, admittedly, is one step removed from cases directly impacting elections, although the effects of those two cases, had they been decided differently, would have hurt the GOP in November. The two Trump cases the Court handled this term also show how much the six conservative justices were focused on the upcoming presidential election.

Mike explained the first Trump case in his year-end review:

Section 3 of the Fourteenth Amendment forbids any person “who having taken an oath . . . to support the Constitution . . . shall have engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States, or under any State.” Last year, two generally conservative scholars—Professors William Baude and Michael Stokes Paulsen—released a draft of an article (subsequently published in the University of Pennsylvania Law Review) arguing that Section 3’s language automatically disqualified former President Donald Trump from seeking the Presidency as a consequence of his actions leading up to and on January 6, 2021. Apparently influenced by their argument, some courts and government officials ruled Trump ineligible for the 2024 Republican Presidential primary ballot.

Well, we couldn't have that could we? In a unanimous ruling, the Court held that states have no jurisdiction to disqualify a President under Section 3, at least absent a federal law authorizing them to do so. That decision came after a Colorado state court, while ruling for Trump on a discrete but dispositive legal question, also wrote about 75 pages of damning prose about how Trump did engage in and aid in an insurrection. The Colorado Supreme Court reversed the legal ruling but adopted the factual findings thus disqualifying Trump in Colorado. 

Since we all know that Congress would never pass such an authorization against Trump, the disqualification issue rather quickly vanished from the scene, almost certainly helping Trump.

If that is true, why did the liberal justices go along, even if they disagreed about the breadth of the opinion? My best guess is that they knew red states were not going to disqualify him anyway, so there was no harm in dismissing this case, and even if they were wrong, the conservative justices would never allow it. 

They also were likely scared of future red state disqualifications of Democratic candidates. I feel justified second-guessing their stated rationales because, as Mike pointed out, the concern about conflicting state decisions that they did embrace was not persuasive "given that the Constitution itself—through Article II and the Twelfth Amendment—creates a sometimes-chaotic state-by-state method for electing a President."

The second Trump case, involving the President's immunity from criminal prosecution once he leaves office, has been characterized by one noted commentator as the legal nadir of the Roberts Court, putting the President "above the law." One does not need to accept that characterization to be highly critical and skeptical of the opinion, which reads like it was intentionally motivated by a desire to make Trump's prosecutions as difficult as possible.

The Court created three buckets of Presidential conduct. For core constitutional functions, such as the President's Commander-in-Chief and pardon powers, he has absolute immunity for all time. For other "official" functions, he has presumptive immunity.  And for unofficial conduct, he has no immunity.

I would have phrased the buckets differently, but this approach is a reasonable one. And had the Court stopped there, the lower courts would have had to figure out in which bucket Trump's efforts to steal the election belonged in.

Alas, the Roberts opinion (with the three liberals dissenting) went much further and held that, when judges try to figure out the relevant buckets, evidence of motive and other concededly official acts, cannot be considered. Pursuant to those gratuitous add-ons, the Court ruled that Trump's conversations with his acting Attorney General had to be stricken from the indictment because those were official acts no matter what the two men discussed. 

What that holding means for the rest of the case is wildly uncertain but what we do know is that the two evidentiary rulings will make these cases much more complicated and difficult for the government.

As Mike wrote:

Those [evidentiary] legal principles are important but perhaps less so than the immediate impact of the case. Although the majority opinion by Chief Justice John Roberts declared that some of the charges brought by Special Counsel Jack Smith against former President Trump must now be thrown out, it did not say whether any of the charges can go to trial. Instead, the Supreme Court remanded the case to Federal District Judge Tanya Chutkan for an in-depth charge-by-charge determination of whether the case can proceed. Even if she is able to conduct that process quickly, as Justice Barrett’s concurring opinion highlighted, Trump would be entitled to appellate review before trial. Consequently, the ruling effectively guarantees that Trump will not face trial before the November election.

There is simply no doubt that the Court's fast-tracking of the disqualification case way back in February combined with the slow-walking of the immunity case and its eventual holding (the last case of the term) had the purpose and effect of making sure Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election but, even if it were, the case would be much, much harder to win. Those events demonstrably help the Republican Party and Donald J. Trump. 


And then we had guns. Two years ago, the Court decided New York State Rifle & Pistol, Inc. v. Bruen, in which the Court overturned a 1911 New York law requiring a special license to openly carry a firearm. As I and many other scholars and judges yelled for the next two years, the opinion was absurdly incompetent and anti-historical in its complete rejection of any form of means-end balancing in Second Amendment cases. Chaos in the lower courts followed.

Part of the chaos included another unhinged Fifth Circuit decision, which invalidated a federal law disarming people under domestic relations protective orders. The particular movant in the case had a history of violent threats, including against the girlfriend who was the subject of the order. There was no way the Court at this moment of time could affirm that madness. Such a holding would have been a complete disaster at the polls, especially among suburban women in swing states, whose votes are all-important. Thus, in Rahimi v. United States, the Court reversed the Fifth Circuit and said the defendant in the case could be constitutionally prohibited from owning a gun. Only Justice Thomas dissented.

I will concede that the conservative justices, except for Thomas, probably felt that the lower court decisions, following and expanding the Bruen approach, were legally problematic. The justices walked back much of Bruen and its overly broad rationale. 

Had the justices either affirmed the lower court, or simply refused to take the case, the headlines would have been easy to write: "Conservative Justices Allow a Known Domestic Abuser to Own Guns Even After He was the Subject of a Valid Protective Order." That result would have been a disaster for the Republican party and thus was never going to happen. As Mike once said, "for while it is true that the Supreme Court follows the election returns, it is also true that the election returns can follow the Supreme Court’s rulings." No doubt the justices were acutely aware of Mike's insight.

There were other extremely important cases, as Mike documented in his year-end summary, including the formal end of the Chevron doctrine. But the story of this term was the 2024 Presidential election, and it appears the conservatives in charge of the Court were watching the election returns much more carefully than they were paying attention to actual legal doctrine, which is exactly what you would expect from a partisan committee of six Republicans and three Democrats.